by Thom Hartmann

Dissident Voice
January 3, 2003

While Nike was
conducting a huge and expensive PR blitz to tell people that it had cleaned up
its subcontractors' sweatshop labor practices, an alert consumer advocate and
activist in California named Marc Kasky caught them in what he alleges are a
number of specific deceptions. Citing a California law that forbids
corporations from intentionally deceiving people in their commercial
statements, Kasky sued the multi-billion-dollar corporation.

Instead of
refuting Kasky's charge by proving in court that they didn't lie, however, Nike
instead chose to argue that corporations should enjoy the same "free
speech" right to deceive that individual human citizens have in their
personal lives. If people have the constitutionally protected right to say,
"The check is in the mail," or, "That looks great on you,"
then, Nike's reasoning goes, a corporation should have the same right to say
whatever they want in their corporate PR campaigns.

They took this argument
all the way to the California Supreme Court, where they lost. The next stop may
be the U.S. Supreme Court in early January, and the battle lines are already
forming.

For example, in
a column in the New York Times supporting Nike's position, Bob Herbert wrote,
"In a real democracy, even the people you disagree with get to have their
say."

True enough.

But Nike isn't a
person - it's a corporation. And it's not their "say" they're asking
for: it's the right to deceive people.

Corporations are
created by humans to further the goal of making money. As Buckminster Fuller
said in his brilliant essay The Grunch of Giants, "Corporations are
neither physical nor metaphysical phenomena. They are socioeconomic ploys -
legally enacted game-playing..."

Corporations are
non-living, non-breathing, legal fictions. They feel no pain. They don't need
clean water to drink, fresh air to breathe, or healthy food to consume. They
can live forever. They can't be put in prison. They can change their identity
or appearance in a day, change their citizenship in an hour, rip off parts of
themselves and create entirely new entities. Some have compared corporations
with robots, in that they are human creations that can outlive individual
humans, performing their assigned tasks forever.

Isaac Asimov,
when considering a world where robots had become as functional, intelligent,
and more powerful than their human creators, posited three fundamental laws
that would determine the behavior of such potentially dangerous human-made
creations. His Three Laws of Robotics stipulated that non-living human
creations must obey humans yet never behave in a way that would harm humans.

Asimov's
thinking wasn't altogether original: Thomas Jefferson and James Madison beat
him to it by about 200 years.

Jefferson and
Madison proposed an 11th Amendment to the Constitution that would "ban
monopolies in commerce," making it illegal for corporations to own other
corporations, banning them from giving money to politicians or trying to
influence elections in any way, restricting corporations to a single business
purpose, limiting the lifetime of a corporation to something roughly similar to
that of productive humans (20 to 40 years back then), and requiring that the
first purpose for which all corporations were created be "to serve the
public good."

The amendment
didn't pass because many argued it was unnecessary: Virtually all states
already had such laws on the books from the founding of this nation until the
Age of the Robber Barons.

Wisconsin, for
example, had a law that stated: "No corporation doing business in this
state shall pay or contribute, or offer consent or agree to pay or contribute,
directly or indirectly, any money, property, free service of its officers or
employees or thing of value to any political party, organization, committee or
individual for any political purpose whatsoever, or for the purpose of
influencing legislation of any kind, or to promote or defeat the candidacy of
any person for nomination, appointment or election to any political
office." The penalty for any corporate official violating that law and
getting cozy with politicians on behalf of a corporation was five years in
prison and a substantial fine.

Like Asimov's
Three Laws of Robotics, these laws prevented corporations from harming humans,
while still allowing people to create their robots (corporations) and use them
to make money. Everybody won. Prior to 1886, corporations were referred to in
US law as "artificial persons," similar to the way Star Trek portrays
the human-looking robot named Data.

But after the
Civil War, things began to change. In the last year of the war, on November 21,
1864, President Abraham Lincoln looked back on the growing power of the
war-enriched corporations, and wrote the following thoughtful letter to his
friend Colonel William F. Elkins:

"We may
congratulate ourselves that this cruel war is nearing its end. It has cost a
vast amount of treasure and blood. The best blood of the flower of American
youth has been freely offered upon our country's altar that the nation might
live. It has indeed been a trying hour for the Republic; but I see in the near
future a crisis approaching that unnerves me and causes me to tremble for the
safety of my country.

"As a
result of the war, corporations have been enthroned and an era of corruption in
high places will follow, and the money power of the country will endeavor to
prolong its reign by working upon the prejudices of the people until all wealth
is aggregated in a few hands and the Republic is destroyed. I feel at this
moment more anxiety than ever before, even in the midst of war. God grant that
my suspicions may prove groundless."

Lincoln's
suspicions were prescient. In the 1886 Santa Clara County vs. Southern Pacific
Railroad case, the U.S. Supreme Court ruled that the state tax assessor, not
the county assessor, had the right to determine the taxable value of fenceposts
along the railroad's right-of-way.

However, in
writing up the case's headnote - a commentary that has no precedential status -
the Court's reporter, a former railroad president named J.C. Bancroft Davis,
opened the headnote with the sentence: "The defendant Corporations are
persons within the intent of the clause in section 1 of the Fourteen Amendment
to the Constitution of the United States, which forbids a State to deny to any
person within its jurisdiction the equal protection of the laws."

Oddly, the court
had ruled no such thing. As a handwritten note from Chief Justice Waite to
reporter Davis that now is held in the National Archives said: "we avoided
meeting the Constitutional question in the decision." And nowhere in the
decision itself does the Court say corporations are persons.

Nonetheless,
corporate attorneys picked up the language of Davis's headnote and began to
quote it like a mantra. Soon the Supreme Court itself, in a stunning display of
either laziness (not reading the actual case) or deception (rewriting the
Constitution without issuing an opinion or having open debate on the issue),
was quoting Davis's headnote in subsequent cases. While Davis's Santa Clara
headnote didn't have the force of law, once the Court quoted it as the basis
for later decisions its new doctrine of corporate personhood became the law.

Prior to 1886,
the Bill of Rights and the 14th Amendment defined human rights, and individuals
- representing themselves and their own opinions - were free to say and do what
they wanted. Corporations, being artificial creations of the states, didn't have
rights, but instead had privileges. The state in which a corporation was
incorporated determined those privileges and how they could be used. And the
same, of course, was true for other forms of "legally enacted game
playing" such as unions, churches, unincorporated businesses,
partnerships, and even governments, all of which have only privileges.

But with the
stroke of his pen, Court Reporter Davis moved corporations out of that
"privileges" category - leaving behind all the others (unions,
governments, and small unincorporated businesses still don't have
"rights") - and moved them into the "rights" category with
humans, citing the 14th Amendment which was passed at the end of the Civil War
to grant the human right of equal protection under the law to newly-freed
slaves.

On December 3,
1888, President Grover Cleveland delivered his annual address to Congress.
Apparently the President had taken notice of the Santa Clara County Supreme
Court headnote, its politics, and its consequences, for he said in his speech
to the nation, delivered before a joint session of Congress: "As we view
the achievements of aggregated capital, we discover the existence of trusts,
combinations, and monopolies, while the citizen is struggling far in the rear
or is trampled to death beneath an iron heel. Corporations, which should be the
carefully restrained creatures of the law and the servants of the people, are
fast becoming the people's masters."

Which brings us
to today.

In the next few
weeks the U.S. Supreme Court will decide whether or not to hear Nike's appeal
of the California Supreme Court's decision that Nike was engaging in commercial
speech which the state can regulate under truth in advertising and other laws.
And lawyers for Nike are preparing to claim before the Supreme Court that, as a
"person," this multinational corporation has a constitutional
free-speech right to deceive.

The U.S. Chamber
of Commerce, Exxon/Mobil, Monsanto, Microsoft, Pfizer, and Bank of America have
already filed amicus briefs supporting Nike. Additionally, virtually all of the
nation's largest corporate-owned newspapers have recently editorialized in
favor of Nike and given virtually no coverage or even printed letters to the
editor asserting the humans' side of the case.

On the side of "only
humans have human rights" is the lone human activist in California - Marc
Kasky - who brought the original complaint against Nike.

People of all
political persuasions who are concerned about democracy and human rights are
encouraging other humans to contact the ACLU (125 Broad
Street, 18th Floor, New York, NY 10004) and ask them to join Kasky in asserting
that only living, breathing humans have human rights. Organizations like ReclaimDemocracy.org are documenting
the case in detail on the web with a sign-on letter, in an effort
to bring the ACLU and other groups in on behalf of Kasky.

Corporate
America is rising up, and, unlike you and me, when large corporations
"speak" they can use a billion-dollar bullhorn. At this moment, the
only thing standing between their complete takeover of public opinion or their
being brought back under the rule of law is the U.S. Supreme Court.

And,
interestingly, the Chief Justice of the current Court may side with humans,
proving this is an issue that is neither conservative or progressive, but
rather one that has to do with democracy versus corporate plutocracy.

In the 1978
Boston v. Bellotti decision, the Court agreed, by a one vote majority, that
corporations were "persons" and thus entitled to the free speech right
to give huge quantities of money to political causes. Chief Justice Rehnquist,
believing this to be an error, argued that corporations should be restrained
from political activity and wrote the dissent.

He started out
his dissent by pointing to the 1886 Santa Clara headnote and implicitly
criticizing its interpretation over the years, saying, "This Court decided
at an early date, with neither argument nor discussion, that a business
corporation is a 'person' entitled to the protection of the Equal Protection
Clause of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R.
Co., 118 U.S. 394, 396 (1886). ..."

Then he went all
the way back to the time of James Monroe's presidency to re-describe how the
Founders and the Supreme Court's then-Chief Justice John Marshall, a strong
Federalist appointed by outgoing President John Adams in 1800, viewed
corporations. Rehnquist wrote:

"Early in
our history, Mr. Chief Justice Marshall described the status of a corporation
in the eyes of federal law:

"'A
corporation is an artificial being, invisible, intangible, and existing only in
contemplation of law. Being the mere creature of law, it possesses only those
properties which the charter of creation confers upon it, either expressly, or
as incidental to its very existence. These are such as are supposed best
calculated to effect the object for which it was created.'..."

Rehnquist
concluded his dissent by asserting that it was entirely correct that states
have the power to limit a corporation's ability to spend money to influence
elections (after all, they can't vote – what are they doing in politics?),
saying:

"The free
flow of information is in no way diminished by the [Massachusetts]
Commonwealth's decision to permit the operation of business corporations with
limited rights of political expression. All natural persons, who owe their
existence to a higher sovereign than the Commonwealth, remain as free as before
to engage in political activity."

Justices true to
the Constitution and the Founders' intent may wake up to the havoc wrought on
the American political landscape by the Bellotti case and its reliance on the
flawed Santa Clara headnote. If the Court chooses in the next few weeks to hear
the Kasky v. Nike case, it will open an opportunity for them to rule that
corporations don't have the free speech right to knowingly deceive the public.
It's even possible that this case could cause the Court to revisit the error of
Davis's 1886 headnote, and begin the process of dismantling the flawed and
unconstitutional doctrine of corporate personhood.

As humans
concerned with the future of human rights in a democratic republic, it's vital
that we now speak up, spread the word, and encourage the ACLU and other
pro-democracy groups to help Marc Kasky in his battle on our species'
collective behalf.